Elston v McEwan NO and Others (C662/07) [2009] ZALC 24; (2009) 30 ILJ 2079 (LC) (9 January 2009)

Elston v McEwan NO and Others (C662/07) [2009] ZALC 24; (2009) 30 ILJ 2079 (LC) (9 January 2009)

The court found that the applicant was not an employee of the second respondent during the disputed period, as she rendered services through a close corporation and did not meet the statutory definition of employee under the BCEA. The arbitrator's decision was reasonable and supported by the evidence, and there was no gross irregularity or irrationality in the award. The grounds for review under section 145(2) of the LRA, as suffused by the Sidumo reasonableness standard, were not met. The application for review and substitution of the award was dismissed, and costs were awarded against the applicant.

Citation
[2009] ZALC 24
Parties
Applicant: Ingrid Elston; Respondent: Gail McEwan NO; Respondent: Shell SA Energy (Pty) Ltd; Respondent: National Bargaining Council for the Chemical Industry
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
9 January 2009
Case Number
C662/07
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
Ngalwana AJ
Legal Topics
Severance Pay, Employee Status, Arbitration Review, Basic Conditions of Employment Act, Labour Relations Act
Labour Law Civil Procedure Severance Pay Employee Status Arbitration Review Basic Conditions of Employment Act Labour Relations Act

Case Brief

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Parties

Ingrid Elston

Applicant

Gail McEwan NO

Respondent

Shell SA Energy (Pty) Ltd

Respondent

National Bargaining Council for the Chemical Industry

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant was an employee of the second respondent during the period 1 June 1997 to 30 April 2001.
  2. 2 Whether the applicant is entitled to severance pay for the disputed period under section 41(2) of the BCEA.
  3. 3 Whether the arbitration award by the first respondent is reviewable under section 77(2) of the BCEA and section 145(2) of the LRA.

Ratio Decidendi

The court found that the applicant was not an employee of the second respondent during the disputed period, as she rendered services through a close corporation and did not meet the statutory definition of employee under the BCEA. The arbitrator's decision was reasonable and supported by the evidence, and there was no gross irregularity or irrationality in the award. The grounds for review under section 145(2) of the LRA, as suffused by the Sidumo reasonableness standard, were not met. The application for review and substitution of the award was dismissed, and costs were awarded against the applicant.

Court Disposition

Application dismissed with costs.

Orders

  • The application for review and substitution of the arbitration award is dismissed.
  • The applicant is ordered to pay the costs of this application.